All posts by Mariette Peters

About Mariette Peters

Email: [email protected]
Tel: +60 3 6209 8228
Mariette Peters obtained both the Bachelor of Laws and Master of Laws from the University of Malaya. She was admitted as an Advocate & Solicitor of the High Court of Malaya in 1992.
In 2002, she joined ZUL RAFIQUE & partners where she set up the Knowledge Management, Research & Training Department. She is responsible for all research and publication of the firm and monitors the firm’s document management system. In line with her designation and academic background, Mariette conducts lectures and training sessions on a regular basis in various areas including Knowledge Management and other legal areas such as those related to privacy, data protection, IT Law and Evidence. Being a Registered Trademark Agent, Mariette’s legal practice area includes Intellectual Property (“IP”), where she handles all the IP files of the firm.

Communications & Multimedia

Articles, Latest News, Technology Media & Telecoms

 Section 114A… Guilty until proved innocent?

In this day and age of technology, where information is easily available and communication is just an email away, internet-related crimes have also been increasingly rampant.

Section 114A of the Evidence Act 1950, was introduced in the hope of enabling law enforcement officers to successfully identify the online perpetrators. In the recent months, cases on the interpretation of section 114A have reached the Malaysian courts.

Introduction

Section 114A, referred to as the Presumption of Fact in Publication, was introduced via the Evidence (Amendment) (No 2) Act 2012 (“the Amendment Act”). The amendment came into force on 31 July 2012.

The amendment aims to facilitate the identification and proving of the identity of an anonymous person involved in the publication through the Internet.

Section 114A – Presumption of fact in publication

  • A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner, facilitates to publish or re- publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved.
  • A person who is registered with a network service provider as a subscriber of a network service on which any publication originates from is presumed to be the person who published or re-published the publication unless the contrary is proved.
  • Any person who has in his custody or control any computer on which any publication originates from is presumed to have published or re-published the content of the publication unless the contrary is proved.
  • For the purpose of this section:

(a) “network service” and “network service provider” have the meaning assigned to them in section 6 of the Communications and Multimedia Act 1998 [Act 588]; and

(b) “publication” means a statement or a representation, whether in written, printed, pictorial, film, graphical, acoustic or other form displayed on the screen of a computer.

The implications

According to sub-section (1) of section 114A, if your name, photograph or pseudonym appears on any publication on the Internet, representing yourself as the publisher, you are presumed to have published the contents of such publication. For example, if someone creates a blogsite in your name, you are presumed to have published the contents on that site, unless you prove otherwise. If someone posts a comment on your blog, you are also presumed to have published it. This will apply to Facebook, Twitter, or any form of social networking service, where you are deemed to have published anything posted on their wall, if that posting is published under your name.

A scrutiny of subsection (2) also appears to have serious consequences. If a posting originates from your account with a network service provider, you are deemed to be the publisher unless the contrary is proved.

A further presumption in subsection (3) is for the contents that originate from a computer. You are deemed to be the publisher so long as your computer was the device used to post that content.

The section is also said to automatically apply when the act complained involves cyber-crime. [1]

Reversing the burden of proof

The section has caused some uneasiness in criminal cases, as it appears to impose the burden on the person to prove his innocence, as opposed to the prosecution to prove its guilt. Furthermore, since computers may be easily manipulated and hacked into, the issue that arises is whether it is too risky to reverse the onus onto Internet users, network services subscribers and computer owners, to prove their innocence.

Retrospective

Furthermore in the recent High Court case of Tong Seak Kan & anor v Loke Ah Kin[2] it was ruled that the presumption has retrospective effect. In that case the defamatory statements complained of were published of the blogsite on 8 August 2011. Although the Amendment Act took effect from 31 July 2012, section 114A applied, nevertheless. Although Tong Seak Kan & anor v Loke Ah Kin is of a civil nature, the question prompted revolves around the constitutionality of section 114A, if applied retrospectively in criminal proceedings.

Rebuttable

Although the presumption is rebuttable, the argument, however, is that there may be difficulties in adducing evidence for the same. It may not only be difficult for the layman to navigate his way through the maze of technology, there may also be other legal hindrances. Furthermore, the standard to achieve in rebutting the presumption is on a balance of probabilities. A mere denial is insufficient. This has been argued to be too onerous a burden.

Much ado about nothing?

The law-makers, however, claim that this section is not as oppressive as it sounds, arguing that section 114A merely renders specific, a power that the court already has in another provision in the Evidence Act, namely, section 114. That section reads:

Section 114

 The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case.

This provision suggests that the court may already invoke a presumption that could have the same effect as section 114A, except for the fact that section 114A is more specific.

Conclusion

Although the section is intended to balance the right of aggrieved persons, especially of those maligned through social media, it begs the question of whether this presumption, if applied especially in criminal cases, is one of guilt, and therefore goes against the very grain of the criminal justice system.

[1] YB Dato’ HJ Husam HJ Musa v Mohd Faisal Rohban Ahmad [2015]1 CLJ 787

[2] [2014] 6 CLJ 904.